Pennsylvania Co. v. Sloan

Citations

• 125 Ill. 72
• 17 N.E. 37

Syllabus

<p>1. Parties—where one is sued by a wrong name—how availed of. Where the real party in interest, and the one intended to be sued, is actually served with process in the cause, even though under a wrong name, he must take advantage of the misnomer by plea in abatement in such suit. If he does not, he will be concluded by the judgment or decree rendered, the same as if sued in his true name.</p> <p>2. Same—identity of a party sued by a wrong name—as a question of fact. Where a railway company of a certain name is sued, and after the period of limitation has expired an amendment is allowed substituting a different name as being that of the defendant, and in the latter name the Statute of Limitations is pleaded, and the plaintiff replies that the'suit was in fact originally brought against the defendant by a wrong name, the issue thus presented is one of fact, only.</p> <p>3. Same—evidence to show identity of party sued by wrong name. To show that the defendant railway company was the same company as originally sued, though by a different name, the plaintiff proved that the company whose name first appeared in the summons had ceased to exist, except for closing up its business, long before the alleged cause of action arose, and that its road had passed from it by sale under a decree of foreclosure, and that the defendant company, at the time of the alleged injury sued for, was the lessee of the railway, and alone operating the same, but doing business in the name of the original company, and was using the signs of the old company, and using cars marked with its initials; that the original summons was in fact served on the agent of the new company, and that its attorneys appeared and defended the action without pleading the misnomer of defendant as originally sued, and that it employed the servants whose negligence caused the injury complained of: Held, that such evidence was competent, as tending to prove the issue whether the suit, when brought, was in fact against th